Harris v. State ( 1991 )

On Motion for Rehearing.

The appellant contends on motion for rehearing, for the first time, that because no written waiver of his right to trial by jury appears in the record transmitted to this court, we must presume that no such waiver was obtained from him. He further contends that the jurisdiction of the probate court was contingent upon its obtaining such a waiver and that its judgment must consequently be considered a nullity, notwithstanding his failure to raise the asserted defect previously. See OCGA § 40-13-23 (a); Snellings v. State, 194 Ga. App. 552, 553 (391 SE2d 36) (1990).

While the document itself is not contained in the record before us, it is evident from the transcript of the probate court proceedings that the appellant did in fact sign a jury trial waiver in open court prior to the commencement of the trial. Following a brief discussion of the need for such a waiver, the appellant’s counsel presented him with the document and instructed him to sign it, telling him, “This says that you are waiving your right to a trial by jury, and you’re going to allow Judge Hamby to hear the case today.” The following parenthetical notation appears immediately thereafter in the transcript: “Thereupon, the defendant signed the waiver.” Thus, contrary to the appellant’s assertion, the record before us does in fact show that the probate court acquired jurisdiction of the case pursuant to OCGA § 40-13-23 (a).

Decided March 8, 1991 Rehearing denied March 29, 1991. Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant. W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

Motion for rehearing denied.